Will Biden's Orders On Abortion Affect Wisconsin's Pre-Roe Ban?

WISCONSIN — In the wake of the Supreme Court decision repealing Roe v. Wade, President Joe Biden has announced federal initiatives aimed at protecting women's access to abortion, with the most recent reminding ER doctor's across the nation that they "must" perform abortions if needed to save a mother's life.

Doctors, even those in Wisconsin, are protected from prosecution by existing federal law on emergency room treatment guidelines that preempt state law when the mother's life is in danger, Biden told reporters Monday during a news conference where he expanded on the executive order he signed last week.

Wisconsin has a pre-Roe law that says anyone aside from the mother who performs an abortion may be liable to felony charges. Attorney General Josh Kaul and Democratic Gov. Tony Evers disputed the law recently in court, and a provision does permit abortion where the mother's life is in danger, but there are no exceptions in cases of rape or incest.

Amid the federal flounder to ensure emergency abortion care for women, and amid attempts to return wider abortion access to women in Wisconsin, pro-abortion advocates in the Badger State say more is needed from local legislators.

RELATED: Wisconsin Abortion Ban Challenged In Lawsuit From Kaul, Evers

"The quickest, surest way we can restore access to safe and legal abortion here in WI is for our legislators to repeal the criminal abortion law- it is fully within the power of our elected state leaders, so the opportunity is all theirs," said Lisa Boyce in a statement, a communications consultant for Planned Parenthood of Wisconsin.

In regards to Biden's statement on Monday, Boyce said many hospitals are religiously affiliated and will not provide abortions, but it isn't immediately clear how the president's "reminder" may impact them. Patch reached out to representatives from Ascension, Aurora and Froedtert for this story on Tuesday but has not heard back.

In the wake of the Supreme Court decision, Planned Parenthood of Wisconsin has said it is prepared to help women who return home from obtaining services out of state. Affiliated Medical Services, a clinic in Milwaukee, says on its website it is referring services to Minnesota and Illinois.

Recently, a Madison doctor has planned to expand abortion access in Illinois and Wisconsin by opening two clinics in Illinois, Wisconsin State Journal reported.

The wider orders signed by Biden last week serve little impact against Wisconsin's criminal abortion ban, Executive Director of Planned Parenthood Advocates of WI Mike Murray said in a statement on July 8.

Murray said PPAWI is grateful for the Biden administration's efforts but urged him to continue to explore and implement other executive actions. None of the actions announced last week will restore access to abortion care in Wisconsin, Murray said.

"Every day that legislative Republicans choose inaction is another day where they are making the choice to deny essential abortion care to women and other people who can become pregnant in Wisconsin," Murray said.

If state lawmakers "continue to abdicate these responsibilities," Murray wrote, "the only other way to restore abortion access in Wisconsin is to have a court of competent jurisdiction clarify that Wisconsin's criminal abortion ban is unenforceable."

More than a dozen states had trigger laws scheduled to take effect immediately or soon after the court struck down Roe v. Wade—the landmark 1973 decision that guaranteed the right to abortion. They and any other laws states might pass are preempted by The Emergency Medical Treatment and Labor Act, or EMTALA, Biden administration officials said.

It requires doctors at medical facilities to evaluate whether patients seeking treatment are in labor and determine if they have a health emergency or might develop one, and provide treatment accordingly.

“Today, in no uncertain terms, we are reinforcing that we expect providers to continue offering these services, and that federal law preempts state abortion bans when needed for emergency care,” Health and Human Services Secretary Xavier Becerra said at the news conference. “Under the law, no matter where you live, women have the right to emergency care — including abortion care.”

Even the most stringent laws allow exceptions when the mother’s life is in danger, but there’s still confusion among physicians regarding how they can treat conditions such as ectopic pregnancy, hypertension and preeclampsia.

“Providers are mystified right now about what they can and can’t do,” NARAL Pro-Choice America President Mini Timmaraju told Politico, citing reports she has heard of patients being turned away.

In a letter to physicians Monday, Becerra said it is “critical” that physicians and other qualified medical personnel understand they have a “legal duty” to perform or induce an abortion by medication if that is medically necessary to save a mother’s life.

“If a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment,” Becerra said in a letter to health care providers Monday.

“When a state law prohibits abortion and does not include an exception for the life of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.”

Doctors who don’t intervene in such medical crises and the hospitals where they practice could be fined, he said. Hospitals could also lose their Medicare status.

Biden administration officials emphasized policy hasn’t changed, and they were merely reminding doctors and health care providers of their obligations under federal law, The Associated Press reported.

There’s little Biden can do at the federal level to restore abortion rights, which the Supreme Court sent back to the states to decide with its June 24 ruling striking down Roe v. Wade. There isn’t enough support in the Senate to codify abortion rights.